This Criminal Revision is directed against the judgment passed in C.A.No.121 of 2008, dated 01.06.2009 by the Additional Sessions Judge/Fast Track Court-I, Tuticorin, confirming the judgment passed in C.C.No.88 of 2006 by the Judicial Magistrate, Sathankulam, dated 24.10.2008.
2.The case of the prosecution is that on 20.06.2006 at 7.00 hours at TKC Nagar Samathuvapuram Arch, the accused drove the tipper lorry TN-45-E-6795 in a rash and negligent manner and hit against the cycle, which was driven by Ramaiah, thereby caused his death. The Inspector of Police attached to Meiganapuram Police Station filed a final report under
Section 304(A) IPC against the accused.
3.In the trial court, 11 witnesses were examined and 12 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner/sole accused for the offence under
Section 304(A) IPC and sentenced him to undergo RI for 5 months and to pay a fine of Rs.500/-, in default to undergo SI for 2 months. http://www.judis.nic.in 3 Aggrieved by the judgment passed by the trial court, the revision petitioner/accused filed an appeal in C.A.No.121 of 2008, which was heard by the Additional Sessions Judge(Fast Track Court No.1), Thoothukudi. The first appellate Court confirmed the findings of the trial court. Hence, this criminal revision.
4.The learned counsel for the revision petitioner/accused submitted that the prosecution has failed to establish the ingredients required for the offence under
Section 304-A IPC and none of the witnesses have spoken that the accused has driven the vehicle either rashly or negligently and there is no specific allegation of negligence as against the accused in driving the offending vehicle and the eye witnesses are interested witnesses and the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal revision may be allowed. The learned counsel for the revision petitioner has placed reliance upon the judgment reported in 2017-1-L.W.(Crl.) 160 [M.Subramani vs. State rep. By Inspector of Police, Edapadi Police Station, Salem District], in support of his contention.
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5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both the courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offence, convicted the revision petitioner for rash and negligent driving of the vehicle and passed proper sentence, which does not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal revision has to be dismissed.
6.Heard both sides and perused the materials available on record.
7.PW1 is the complainant and he gave Ex.P1 complaint. PW1 in his complaint stated that on 20.06.2006 at 5.30 hours, he and his co-workers Muthu Raja, Ramaiah and Mohan were travelling in their cycle and proceeded on the Nazarath to Sathankulam main road. When they reached TKC Nagar Arch, at that time the accused drove his vehicle in a rash and negligent manner and due to which, the back door of the lorry opened on the side and hit against Ramaiah (the deceased) and Ramaiah fell down and then he was taken to the hospital, where he died. http://www.judis.nic.in 5
8.PW1 during his evidence deposed that on 20.06.2006 at 5.30 hours, he, Muthu Raja and Ramaiah went to their avocation and when they were proceeding on Nazarath-Sathankulam main road towards south-north direction near TKC Nagar, at the time, the accused drove the lorry in a speedy manner and suddenly crossed them and due to which, the back door of the above lorry hit on the neck of Ramaiah and he fell down and immediately, he was taken to the Government Hospital, but he died. PW1 has not stated that at the time of occurrence, the accused drove the lorry in a rash and negligent manner.
9.PW2 and PW3 are cited as eye witnesses. PW2 and PW3 deposed that on 20.06.2006 at 7.00 am, while they were proceeding in their bicycles and when they reached TKC Nagar, at that time, the offending vehicle came in the opposite direction and the back door of the offending vehicle opened and hit against the neck of the deceased and due to which, the deceased sustained injury and they took the injured and admitted him in Sathankulam Government Hospital. PW2 and PW3 have not deposed that at the time of occurrence, the accused drove the vehicle in a rash and negligent manner.
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10.The learned counsel for the accused argued that PW5 Motor Vehicle Inspector during his cross examination stated that the back door of the tipper lorry will be opened, when the tipper lorry moved upwards to unload the material from the lorry and hence, it is not possible for opening of the back door of the tipper lorry, when it was plying and it hit against the deceased. Hence, there is no chance, the back side door of the tipper lorry was hit against the neck of the deceased and only due to the negligence on the part of the deceased, the accident occurred and prays that the accused is entitled to acquittal.
11.At this juncture, it is relevant to refer the cross examination of PW5, the Motor Vehicle Inspector. PW5 during his cross examination deposed that og;gh; yhhpapd; nlhh;ghoapd; gpd;gf;f fjt[ og;ghpd; gpd;gw [ k; nkny vGk;nghJ jpwf;Fk;
vd;why; rhp jhd;. But as per the prosecution case, the back door of the offending vehicle opened and hit against the deceased. From the evidence of PW5, it reveals that the back door of the offending vehicle will not open when it was plying. Hence, the evidence of PW1 to PW3 stating that the door of the lorry opened and hit against the deceased is not at all acceptable. http://www.judis.nic.in 7
12.In this case, PW7 and PW10 were cited as witnesses in the observation mahazar and athachi. But PW10 turned hostile and did not support the case of the prosecution. PW7 stated in his evidence that the police came to the place of occurrence and prepared observation mahazar. But the police did not recover any articles except the cycle. No explanation was offered on the side of the prosecution for the non-recovery of other articles from the place of occurrence. Hence, it creates doubt about the prosecution case.
13.PW8 Doctor deposed that the skin of the deceased with 2 x 5 cms was found cut on the neck and blood vessels were found cut and a lacerated injury seen on the right knee. But during his cross examination, she has admitted that the injury No.1 is possible with sharp edged weapon and the injuries found on the legs are possible, while falling from cycle in the Thar road and no injuries are found on the head and back side of the deceased.
14.From the evidence of PW8, it is clear that if really the door of the lorry was hit against the deceased, there is a possibility of sustaining injuries on the upper portion of the hip and the http://www.judis.nic.in 8 deceased might have sustained injuries when he fell down on the road, which was very narrow and due to the material objects, which were kept in the cycle handle bar. Hence, the prosecution version that the deceased sustained injuries due to the opening of the door of the tipper lorry and subsequently, he died is not at all accepted.
15.Further, in this case, PW3 and PW5 are closely related to the deceased and they are also interested witnesses. Hence, much importance cannot be given to their evidence.
16.It is mainly argued on the side of the revision petitioner/accused that the oral evidence of the prosecution witnesses was not proved the rash and negligent driving of the accused and there are contradictions between the oral evidence of the prosecution witnesses and there can be no general presumption that a person should have driven a vehicle in a rash and negligent manner, merely because there was an accident.
17.At this juncture, it is relevant to refer the decision of this court reported in 2017-1-LW.(Crl.)160 (M.Subramani Vs. State rep. By Inspector of Police, Edapadi Police Station, Salem District), wherein this court has held as follows:-
accident where the accused was prosecuted under
Section 304-A IPC, one of the witness had stated that the bus drive came driven the bus at a high speed. The Hon'ble Apex Court held that it would not satisfy the requirement of the driver driving the vehicle in a rash and negligent manner as required under
Section 304-A IPC and acquitted the accused.”
20.In this respect, the following observations made by the Hon'ble Supreme Court in SATISH (supra) are relevant here to note:-
3.Both the Trial Court and the Appellate Court held the respondent guilty for offences under
Sections 337,338 and
304-A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the Trial Court or by the First Appellate Court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the Courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.
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4.Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
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21.Subsequently, in Abdul Subhan vs. State (NCT of Delhi) {2007 Cri.L.J. 1089}, in a road accident case for an offence under
Section 304-A IPC, the only available evidence of an Head Constable is that the bus driver had driven the bus fastly. The Delhi High Court relying on the Hon'ble Apex Court decision in SATISH (supra) held that the bus driver cannot be held to have drove the bus in a rash and negligent manner.
22.In State vs. Avadh Kishore {Crl.L.P. No.213 of 2007 dated 30.1.2009 (Delhi High Court)}, the Delhi High Court reiterated its earlier view in ABDUL SUBHAN (supra).
23.Recently in Puttaiah @ Mahesh vs. State by Rural Police {Crl. Review Petition No.1317 of 2010 dated 4.3.2016 (Karnataka High Court)}, the Karnataka High Court held as under:
http://www.judis.nic.in 12 “In this view of the matter, both the Trial Court as well as the First Appellate Court have not assessed the oral and documentary evidence in right perspective. Both the Courts should have navigated through the evidence of material witnesses cautiously. Glaring inconsistencies have been brushed aside as minor variations. They have adopted wrong approach to the real state of affairs and have not properly scanned the evidence. Both the Courts have forgotten that the initial burden was on the prosecution to establish the charge of rashness or negligence beyond reasonable doubt. Thus, the judgments of both the Courts suffer from perversity and illegality. Hence, this Court is of the opinion that the revision petition is to be allowed.”
18.On coming to the instant case, the prosecution witnesses have not stated that the accident occurred due to the rash and negligent driving of the accused.
19.For all the reasons stated above, this court is of the considered view that the prosecution has failed to prove the case beyond reasonable doubt and the impugned judgment of conviction and sentence are liable to be set aside. http://www.judis.nic.in 13
20.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence are set aside. The revision petitioner/accused is acquitted of the charge levelled against him. The bail bond if any executed by him shall stand cancelled and the fine amount if any paid by him shall be refunded to him.
13.07.2018 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 14 T.KRISHNAVALLI,J er To,
1.The Judicial Magistrate, Sathankulam.
2.The Additional Sessions Judge, (Fast Track Court No.1), Tuticorin.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madruai.
Judgment made in Crl.R.C(MD)No.354 of 2010 13.07.2018 http://www.judis.nic.in 15 http://www.judis.nic.in